EPA’s Paused Chemical Lawsuits Offer Path to Regulatory Overhaul

The EPA has bought time by pausing lawsuits challenging several chemical rules it plans to rewrite, but attorneys say this doesn’t guarantee the agency’s long-term legal success.

Since the Trump administration began, three circuit courts have granted the Environmental Protection Agency’s requests to pause three of seven lawsuits challenging Biden-era Toxic Substances Control Act (TSCA) rules so the agency can revise the regulations.

The EPA used the time to signal policies it may pursue as it evaluates and regulates chemicals used by thousands of US manufacturers but which have harmful characteristics that could injure workers, consumers, and other people, attorneys say.

Policies the Trump administration’s EPA has floated are generally backed by trade associations as offering needed relief from what they say are prohibitively restrictive Biden-era requirements, while environmental groups oppose them as undermining public health protections.

The courts’ decisions to largely grant the Trump administration’s abeyance requests aren’t surprising due to the type of Administrative Procedure Act argument the EPA used, said Judah Prero, of counsel with Arnold & Porter Kaye Scholer LLP.

The EPA told courts it needs to ensure the rulemaking record supports the final rule, he said. “Why would a judge want to deal with a rule, when the EPA is acknowledging there may be flaws?”

It’s not uncommon for courts to allow a new administration the opportunity to reconsider a recent decision made by its predecessor, said Jonathan Kalmuss-Katz, an attorney with Earthjustice, a nonprofit environmental law organization. “But I wouldn’t say the Trump administration has won anything yet.”

Pending Lawsuits

The US Courts of Appeals for the DC, Fifth, and Eighth Circuits allowed the EPA to pause lawsuits challenging rules issued in 2024: one regulation described the agency’s procedures to evaluate chemicals’ risks, and two rules managed risks from perchloroethylene and carbon tetrachloride.

The EPA has since proposed a new rule laying out procedures and policies for chemical risk evaluation, and it sought comment on possible revisions to the perchlorethylene and carbon tetrachloride rules.

Meanwhile, oral arguments took place last June over the agency’s methylene chloride risk management rule.

The US Court of Appeals for the Ninth Circuit heard arguments in two other chemical cases March 3. The first involves the agency appealing a district court’s decision that fluoride in drinking water poses an unreasonable risk under TSCA.

The second addressed the EPA’s regulation of decabromodiphenyl in 2021 and a 2024 revision to the original rule. The TSCA section under which the EPA regulated that flame retardant required the agency to select risk control measures based on “achievability, feasibility, workability, and reasonableness,” which raises the question of how the statute measures reasonableness, said Judge Sidney R. Thomas.

Oral arguments are provisionally scheduled the week of June 1 over the agency’s chrysotile asbestos regulation.

Litigation also is proceeding over the EPA’s trichloroethylene risk management rule. The US Court of Appeals for the Third Circuit denied the EPA’s request to pause that litigation, yet the court’s order acknowledged the agency will be revising the regulation while the case proceeds.

The cases are notable because they follow Loper Bright Enterprises v. Raimondo, which put courts, not agencies, in charge of interpreting ambiguous laws. They also involve some of the judicial system’s first interpretations of the 2016 TSCA amendments’ statutory language and requirements, said Karyn Schmidt, a principal with Squire Patton Boggs.

Several lawsuits raise similar questions, such as what constitutes an unreasonable chemical risk that TSCA requires the agency to regulate, but it’s unknown whether courts will rule narrowly or offer broader interpretations of the amended law, Schmidt said.

The legal activity puts the EPA in a challenging position as court opinions could interpret the statute before or after the agency finalizes the rules it’s revising, Arnold & Porter’s Prero said.

Policy Signals

While parties await court opinions and regulatory revisions, they can examine policies the agency has floated, all three attorneys said.

The EPA’s chemicals office indicated it will move away from relying on Integrated Risk Information System (IRIS) toxicity values for chemicals, Prero said.

IRIS values can describe a carcinogen’s potency or the amount of a chemical that the agency thinks would not cause diseases other than cancer. Industry groups have criticized IRIS values for years, saying the low toxicity numbers result in regulations more stringent than necessary.

This EPA also has said it interprets TSCA as allowing the agency to exclude from risk evaluations some ways chemicals are used and people exposed, Prero said.

And this EPA is willing to defer chemical regulations to other parts of the agency or other agencies, Prero said.

Finally, this administration says risk evaluations can presume some workplaces protect their employees through personal protective equipment (PPE), he said.

If the EPA presumes PPE is used, it may conclude a chemical’s use doesn’t pose unreasonable risk and doesn’t need to be regulated. The Biden administration’s risk evaluations presumed workers might not always receive properly fitting and functioning PPE.

Nothing the EPA has released so far suggests it will stop evaluating workplace risks, Schmidt said. But the risk management approach it uses may be more refined, she said.

For example, the agency might require safety training or incorporate certified training programs by reference in regulations, instead of occupational exposure limits and other workplace mandates it’s used, Schmidt said.

All the policy signals the agency has sent would eliminate critical public health protections the agency set, and roll back well established scientific practices, said Earthjustice’s Kalmuss-Katz.

The Biden-era rules offered the bare minimum protections allowed under TSCA and in many cases they didn’t go far enough to protect workers and the public, he said. Any weakening of those rules would be unlawful and a potential target for litigation, he said.

Whatever courts rule and the EPA does, neither industry nor environmental groups are likely to get everything they want, Schmidt said. Amended TSCA remains a relatively young statute with many questions of statutory interpretation unresolved, she said. “The reality is there’s a lot more litigation to come.”